Nozick's Basketball Example Still Answers Rawls's Veil of Ignorance

The most dangerous idea in modern political philosophy fits in a sentence: if you did not know who you would be, you would choose to share. Behind that sentence sits the best argument for redistribution ever written, and anyone who wants to defend a free economy has to meet it at full strength. Dodging it with a slogan about greed does not work, and the people who wrote it were not greedy. They were the sort of earnest professors who would give you their last biscuit.

So let us do this properly. First the case for the left, put the way its defenders would put it. Then the answer, which arrives in the form of a basketball player, a quarter and a very annoying question. Then the caveats a conservative should add, because Robert Nozick was a brilliant ally and not a perfect one.

The two Harvard men

John Rawls, a Harvard philosopher, published A Theory of Justice in 1971. It became the central text of modern liberal political philosophy. Robert Nozick, who taught in the same Harvard department, answered it in 1974 with Anarchy, State, and Utopia, which won the National Book Award for philosophy and religion in 1975. The two books are a pair, and a debate that began in a faculty building is still running in every argument over taxes.

The case for redistribution, fairly stated

Rawls begins with a question: what makes a society just? His method is to imagine a group of people who must choose the principles that will govern their society, but who do so from what he called the original position, behind a veil of ignorance. Behind the veil, no one knows his own talents, his class, his race, his religion, his family or even his own idea of the good life. Everyone is rational and self-interested, but no one can tailor the rules to his own advantage.

What would they choose? Rawls argued for two principles.

1. Each person gets the most extensive set of equal basic liberties compatible with the same for all.
2. Social and economic inequalities are allowed only if they are attached to open positions under fair equality of opportunity, and only if they work to the greatest benefit of the least advantaged members of society.

The second part is the difference principle, and it is the one that moves money. Inequality is just only if it makes the worst-off better off than they would otherwise be. If a surgeon's high pay draws talent that helps the poor, fine. If a tax cut helps the rich and nobody else, no.

Why would people behind the veil choose that? Rawls says they would be cautious. Not knowing whether they will be born rich or poor, healthy or sick, gifted or not, they would protect against the worst outcome. And he added a further argument: talents are a matter of luck. Nobody earned his genes or his parents. So the gains from natural advantages are not deserved in a deep sense, and a just society treats them as a common asset.

That is a serious argument. It deserves a serious answer, not a sneer.

Nozick's reply: the Wilt Chamberlain example

Nozick's reply begins by attacking the form of Rawls's theory, not its good intentions. Rawls, and most theories of distributive justice, he said, are patterned or end-state theories. They judge a distribution by whether it fits a pattern: equal shares, shares according to need, shares according to merit. Justice is a matter of what the picture looks like at a given moment.

Nozick offers a different test, an historical one: how did people come to hold what they hold? Then he gives the example that made him famous.

Suppose, as a hypothetical, that we start with a distribution of holdings you consider perfectly just. Call it D1, and let it be whatever pattern you favor, even strict equality. Now suppose Wilt Chamberlain, the basketball star of the day and a great gate attraction, signs a contract with his team. For every home game, twenty-five cents from the price of each ticket goes to him. The fans agree. They drop a quarter into a special box as they enter, which they do willingly, because they want to see him play.

Over a season a million people come through the gate. The arithmetic is simple: one million times twenty-five cents is $250,000. Chamberlain now has $250,000, far more than anyone else. The distribution is no longer equal. It is D2.

Now ask the question. Is D2 unjust? Everyone started with a just distribution, and everyone moved voluntarily, paying for what they wanted. If D1 was just, and each step was a free exchange, then D2 must be just too. And if you insist on restoring D1, you must interfere with people's free choices.

That is the line the example is built to deliver. Liberty upsets patterns. Any pattern you impose will be disturbed by free people doing what they like with what is theirs, so to maintain it you must keep interfering, forever. Nozick's slogan for his own alternative, quoted ever since, is "From each as they choose, to each as they are chosen."

The entitlement theory

Nozick's positive view is what he calls an entitlement theory, and it has three parts.

1. Justice in acquisition. How may you come to own something that was not owned before? Nozick draws on Locke, who said you acquire property by mixing your labor with unowned things, with a proviso that enough and as good is left for others. Locke Said Property Begins the Moment Your Labor Mixes With the Earth explains that tradition.
2. Justice in transfer. How may holdings pass from one person to another? By free exchange, gift and inheritance, not by force or fraud.
3. Rectification. If holdings were acquired or transferred unjustly, by theft or fraud, they must be corrected.

If a distribution arises from just steps, Nozick says, it is just, whatever shape it takes. That is the sentence that every redistributionist wants to break, and it is why the argument still matters.

The numbered answer to Rawls

The reply to Rawls can be summarized in five points.

1. A just pattern needs constant enforcement. If you want to keep D1, you have to stop Chamberlain's fans from paying him, or take the money afterward. Either way, you override the choice of a million adults who did nothing wrong.
2. People are not a common pool. Rawls treats natural talents as a collective asset, so the state may tax their fruits. Nozick answered that this treats persons as means to others' ends, which violates the principle that people are ends in themselves. An asset that is "common" is one the state may spend, and that gives the state a claim on your life. That is a heavy price for a sentence about luck.
3. Luck does not abolish desert in transfers. Even if Chamberlain did not earn his height, the fans did choose to pay him. Nobody has to earn his talents to be entitled to what others freely give him for using them. The relevant question is how the money moved, not whether the talent was deserved.
4. Choosing rules for strangers misses the actual people. The veil strips away everything that makes people who they are. Real citizens have a family, a faith, a history and a stake. Rawls's reasoners have no loyalties, and neither does the justice they choose.
5. Taxation on labor looks like partial forced labor. Nozick made the provocative claim that taxing earnings from labor is on par with forced labor, since it takes hours of a person's life. That is the most contested step, and a careful conservative may say the analogy is too strong. But it points to a real fact: the state's claim on your income is a claim on your time.

What a conservative should add

Here the post turns from praise to caution, because Nozick was a libertarian, and conservatives are not simply libertarians.

• Nozick's state is minimal, and conservatism needs more than a night-watchman. He allowed protection against force, theft and fraud, and little else. Conservatives also value an ordered culture, a strong family, the rule of law and a government that can defend the country. Ordered Liberty Is Not a Contradiction, It Is the Only Kind That Lasts makes that point.
• Liberty without virtue does not last. Nozick wrote about rights and exchange, and mostly stayed silent about character. The Founders thought a free people must be a moral people, a theme in Self-Government Starts With Governing Yourself, the Founders Insisted.
• Community is not an afterthought. Voluntary exchange is only part of life. Churches, families and neighborhoods are held together by obligations that no contract captures, as Burke and Nisbet argued in Robert Nisbet Saw Lonely People Turn to the State for Belonging.
• Nozick himself softened. Late in life, in The Examined Life (1989), he wrote that he no longer held the strictest form of his earlier position, and acknowledged a role for democratic decisions about shared purposes.
• Acquisition is hard. Real-world property histories include theft and conquest. The rectification clause admits that a perfect history may be impossible, which a practical conservative can accept without dropping the principle.

None of this weakens the Chamberlain example. It only means the example is a tool and not a creed.

The strongest objection, answered

Here is the best case against Nozick.

The example is a trick. It starts with a just distribution, which assumes the answer. In real life, D1 is never just, because wealth is shaped by history, inherited advantage and unequal opportunity. A million quarters from fans do not make Chamberlain an entitled billionaire if the system that produced him and them was unfair to begin with. And one star athlete is not a society; most of life is not a free exchange among equals.

The answer is in three points.

1. The example does not need perfect starting conditions. Nozick's argument is conditional: if the first step was just and each step after was voluntary, the result is just. The objector must then say which step was unjust. Where there is a real injustice, such as fraud, theft or a law that barred people from the market, the rectification principle applies.
2. Real inequality has real causes, and most are not Chamberlain's. Where wealth came from serving customers, it is a different thing from wealth won by privilege or political favors, and a conservative can attack the second kind as sharply as any socialist, as big companies love the regulations their small rivals cannot afford shows.
3. The example identifies the cost of the alternative. Rawls's goal may be attractive, but his means require continuing control of free exchange. The objector who rejects Nozick must say how much interference with voluntary transactions he will accept, and who gets to decide. That is the question of Sowell on Cosmic Justice, and Why Fair Rules Beat Engineered Results, which asks whether we want fair rules or engineered results.

The objection is right that history is messy. It is wrong that mess excuses permanent pattern enforcement.

Why it matters at the ballot box

Every debate about a wealth tax, a top marginal rate or a new transfer program contains a small Rawlsian premise: that a just society has a target shape, and that taxes are the tool to reach it. Nozick's example asks us to flip the question. Instead of "what shape do we want?" ask "what did people do to get what they have?" A fortune built by serving a million willing customers raises a different question from a fortune built by a regulation, a bailout or a fraud.

That is the ground on which conservatives can meet the redistributionist honestly. We do not have to deny the suffering of the poor, and our best answers on that score are about opportunity, work and civil society. What we deny is that justice is a picture to be enforced. It is a set of rules that treat people as responsible adults. The case for that view runs from Hayek Wrote Why I Am Not a Conservative, and He Had a Point Worth Facing to the marginal rate is the one that decides whether you work the extra shift.

The case in brief

1. John Rawls's A Theory of Justice (1971) argued that people behind a veil of ignorance would choose equal liberties and a difference principle allowing inequality only if it benefits the least advantaged.
2. Robert Nozick's Anarchy, State, and Utopia (1974) answered that Rawls's theory is patterned, and that liberty upsets patterns.
3. In the Wilt Chamberlain example, a just starting distribution becomes unequal when a million fans each pay 25 cents, for $250,000 in total, and since every step was voluntary, the result is just.
4. Nozick's entitlement theory, with justice in acquisition, transfer and rectification, asks how holdings came about, not what shape they form.
5. Conservatives should add what Nozick left out: virtue, family, community and the rule of law, and they should treat his example as a tool and not a creed.

What you can do: the next time someone proposes a new tax or transfer, ask the Nozick question aloud: who gave what to whom, was every step voluntary, and what will it take to enforce the result?